1992(11)LCX0049

BEFORE THE CEGAT, SPECIAL BENCH ‘D’ NEW DELHI

S/Shri K.S. Venkataramani, Member (T) and S.L. Peeran, Member (J)

SHRI VISHVAKARMA (EMERY STONES) INDUS. PVT. LTD.

Versus

COLLR. OF C. EX.

Order No. E/532/90-D, dated 30-11-1992 in Appeal No. E/1973/92-D

Cases Quoted

Katrala Products (P) Ltd. v. Collector- 1989(08)LCX0013 Eq 1989 (044) ELT 0160 (Tribunal)..... [Para 1]

Collector v. Madras Fertilizers -1989(10)LCX0020 Eq 1990 (045) ELT 0339 (Tribunal) ..... [Para 1]

Advocated By : Shri D. N. Mehta, Advocate, for the Appellants.

Shri J. N. Nair, JDR, for the Respondent.

[Order per : K.S. Venkataramani, Member (T)]. - This is an appeal against the order dated 11-12-1991 passed by the Collector of Central Excise (Appeals), New Delhi. The appellants herein manufacture flourmills falling under sub-heading 8437.00 Central Excise Tariff Act, 1985, Emery Millstones and parts of flourmills falling under 8485.90 of Central Excise Tariff Act, 1985. They filed classification list effective from 13-9-1988 claiming classification of Emery Millstones under sub-heading 6801.90 of Central Excise Tariff Act, 1985 and claimed exemption under Notification No. 111/88. The lower authorities were of the view they were not entitled to the exemption and the matter was adjudicated and order was passed by the Assistant Collector on 30-1-1989 denying the exemption. The matter was taken in appeal thereafter and at that stage they put forth a new ground saying that Heading 68.01 covers millstones without frame work and that since their millstones are fitted with frame work, they fall outside the purview of Heading 68.01 and are rightly classifiable under Chapter 84 and will thereafter be eligible for exemption under Notification No. 111/88 as amended by Notification No. 141/88. The Collector (Appeals) by his order dated 30-11-1989 remanded the matter to the Assistant Collector to ascertain whether the claim is substantiated and to redetermine the classification of the goods. In the de novo proceedings an order was again passed by the Assistant Collector dated 30-7-1990 holding that the goods are classifiable under sub-heading 6801.90 without benefit of Notification No. Ill /88. The appeal against this order of the Assistant Collector was rejected by the Collector (Appeals) by impugned order presently before us. Shri D.N. Mehta, learned Counsel appearing for the appellants referred to the literature on the Emery Millstones of the appellants on record to say that these millstones are fitted with frame work. He also referred to a clarification, said to have been issued, by the Central Board of Excise and Customs F. No. 151/5/91-CX. 4 dated 20-10-1992 in which it has been stated that considering the description against relevant headings/sub-headings, the Board is of the view that flour millstone fitted with cast iron frame/fitting and identifiable as part of the milling machinery would merit classification under Chapter 84 whereas millstones without such fittings would fall under Chapter 68 CETA, 1985. The learned Counsel submitted that the Assistant Collector had relied upon the HSN Explanatory Notes to say that Millstones of Chapter 68 have been excluded from Chapter 84 by Note to Section XVI. On the other hand, the learned advocate referred to HSN at Page-900 in which it is clearly stated that the stones which are to be considered for classification under 68.04 must be without frame works and that those with frame works are to be classified under Chapter 84 and 85. The learned Counsel further urged that the declaration meant for classifying the goods under Item 68 CET will not be conclusive as has been held by the Collector (Appeals). The following case law were cited for the ratio of Tribunal in considering classifications of parts of machines -

1. 1989(08)LCX0013 Eq 1989 (044) ELT 0160 (Tribunal) - Katrala Products (P) Ltd. v Collector of Customs.

2. 1989(10)LCX0020 Eq 1990 (045) ELT 0339 (Tribunal) - Collector of Customs v. Madras Fertilizers

The learned Departmental Representative while reiterating the reasoning found in the impugned order urged that the goods have been correctly classified under Chapter 68.

2. The submissions made by both the sides have been carefully considered. The question is whether the Emery Millstones manufactured by the appellants would be classifiable under 6801.90. Sub-heading 68.01 reads as follows :-

“Millstones, grindstones, grinding wheels and the like, without frame works, for grinding, sharpening, polishing, trueing, or cutting, hand sharpening or polishing stones, and parts thereof, a natural stone, of agglomerated natural or artificial abrasives, or of ceramics, with. or without parts of other materials.”

The above description of the Tariff Heading itself clearly brings out that classification under this sub-heading will be applicable only for such millstones which are without frame work. In the present case the Assistant Collector has recorded in hIs order that he visited the appellants’ factory and found that the emery millstones are fitted with cast iron frame. Therefore, from the facts of the present case such millstones being fitted with frame work would fall outside the purview of sub-heading 6801.90. The HSN Explanatory Notes which admittedly have a persuasive value at page-900 Vol. Ill also indicate that such stones will not fall under Item 68 but would be classifiable under Chapter 84 or 85 depending upon whether they are manually operated or power operated. The literature regarding the millstones produced by the appellants would indicate that they are meant for power operation and these are meant for flour mills. The appellants have also referred to the clarification issued by the Central Board of Excise and Customs which would also seem to support their claim that such millstones fitted with frame work are to be classified under Chapter 84. In this view of the matter, the classification of the goods under Chapter 68 is not sustainable. The Assistant Collector has already given a finding in Para-12 of his order that the millstones are parts of flour mill machines and in view of this, their classification under sub-heading 8437.00 will be justified and consequently the goods will also be eligible for Notification No. 111/88 as amended by Notification No. 141/88, since the goods fall under Chapter 84. The appeal is disposed of in the above terms.

Equivalent 1993 (65) ELT 44 (Tribunal)